It's no secret that I'm not a fan of arbitration of employment disputes.
Conventional wisdom says that binding arbitration keeps down costs and speeds
up resolutions. I've yet to be convinced. Many employers, though, continue to
drink the arbitration Kool-Aid by requiring employees sign alternative dispute
resolution agreements as part of their employment. Sherwin-Williams appears to
be one of them. Its choice of one key word in its Problem Resolution
Procedures, however, cost the paint company its chance to litigate an
ex-employee's age discrimination claim in its forum of choice.
The word at issue in Hyde v. Sherwin-Williams Co. (8/25/11) [pdf] is
"may." Sherwin-Williams's Problem Resolution Procedures provide:
These procedures may be used by employees to challenge
the unresolved differences regarding application of Company policies,
procedures or practices which affect their employment situation. These
procedures are intended to be an exclusive, final and binding method to resolve
all covered claims to the fullest extent permitted by law. Failure to use these
procedures may preclude employees from pursuing any other legal right they may
have in court or in other forums.
An Ohio appellate court concluded that the use of the
word "may" disposed of Sherwin-Williams's attempt to force an ex-employee to
litigate his age discrimination claim in court:
We find that Sherwin-Williams' repeated representations
that an employee's failure to follow the PRP "may" preclude that employee from
seeking redress in outside forums expressly contradicts appellants' position
that the procedures outlined in the PRP are the exclusive method for resolving
employee disputes. By virtue of the language used ... appellants implied that there
would be circumstances where an employee would not be prevented from pursuing
resolution of their legal claims in outside forums, i.e., that the PRP
procedures are not mandatory, final, or binding.
What's worse for Sherwin-Williams is that 8 years ago another panel of the same appellate court
reached the same conclusion about the same language in a prior version of the
What's the takeaway from this case for employers? In
drafting agreements and policies, words matter. If you mean "must," say it.
Don't say "may" (especially when a court has already told you that "may"
doesn't pass muster).
Visit the Ohio Employer's Law Blog for more
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